Will Sexual Orientation and Gender Identity Discrimination Become Illegal?

Three cases argued last month before the United States Supreme Court raise a key employment question that may significantly affect the way churches approach future hiring, firing, compensation, and benefits decisions involving nonministerial employees.

Though a ruling is not expected until the Supreme Court’s current term ends in the spring of 2020, legal experts say congregations with theologically conservative views of human sexuality should note the situation and contemplate taking several steps now to protect those positions.

At issue before the Supreme Court: How the term sex should be interpreted under Title VII of the Civil Rights Act of 1964. The federal law prohibits employers with 15 or more workers from discriminating against people based on their race, color, religion, national origin, or sex, the latter term long-assumed to mean biological gender (male or female).

The plaintiffs in the three cases, however, argue the definition means more than biological gender and should both encompass sexual orientation and gender identity, thus providing legal protections for people who are gay or transgendered. The defendant employers—two for-profit businesses and one county government—contend the respective dismissals in their cases were not solely based on sexual orientation or gender identity, if at all. And even if they were, the defendants add, Title VII does not prohibit decisions based on such criteria because Congress never contemplated such a broad meaning of sex when the law was passed 55 years ago.

The three cases—Bostock v. Clayton County; Georgia, Altitude Express v. Zarda; and Harris Funeral Homes v. the Equal Employment Opportunity Commission—were consolidated into one by the Supreme Court since they address similar matters. Although no church or religious organization is involved with this particular litigation, religious-related concerns still arose during oral arguments, leaving observers to wonder what potential impact could come to churches if a Court majority sides with the plaintiffs.

“If the Supreme Court rules that sexual orientation/gender identity discrimination is illegal, then churches would face the prospect of lawsuits by gay or transgender individuals who are denied employment in nonministerial roles,” said Thomas Berg, a professor with the University of St. Thomas School of Law in Minnesota, through an email interview with Church Law & Tax. “But it’s highly uncertain whether the Court will declare sexual orientation/gender identity discrimination illegal.”

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